Date: 03-01-2017

Case Style: Jose H. Lizarraga-Regalado v. Jeff Premo

Case Number: A154944

Judge: Haselton

Court: Oregon Court of Appeals on appeal from the Circuit Court, Marion County

Plaintiff's Attorney: Jason L. Weber

Defendant's Attorney: Jona J. Maukonen

Description: Petitioner appeals a judgment denying post-conviction
relief. He assigns error to the trial court’s dismissal, by way
of summary judgment, of his claim based on criminal trial
counsel’s failure to challenge the giving of a “natural and
probable consequences” uniform jury instruction identical
to that which the Oregon Supreme Court later disapproved
in State v. Lopez-Minjarez, 350 Or 576, 582-84, 260 P3d
439 (2011). For the reasons that follow, we conclude that
(1) the first of the two alternative grounds on which the postconviction
court granted summary judgment was erroneous
as a matter of law, see, e.g., Walraven v. Premo, 277 Or App
264, 277-85, 372 P3d 1 (2016); and (2) petitioner proffered
sufficient contravening evidence to preclude summary judgment
on the second alternative ground. Accordingly, we
reverse and remand.1
The historical and procedural circumstances material
to our review are undisputed. In March 2004, petitioner
was charged, by way of a five-count indictment, with felonies
against three victims, C, D, and E. The indictment
further alleged that petitioner had committed each of
those offenses “jointly” with five codefendants. Specifically,
Count 1 (attempted murder) and Count 2 (second-degree
assault) were based on conduct against C; Count 3 (firstdegree
robbery) pertained to conduct against D; and, finally,
Count 4 (first-degree kidnapping with a firearm) and
Count 5 (first-degree robbery with a firearm) were both based
on conduct against E.
The criminal case proceeded to trial before a jury
in the fall of 2004. The court—without exception from petitioner’s
criminal defense counsel—instructed the jury consistently
with the then-extant accomplice liability “natural
and probable consequences” uniform jury instruction:
“A person who aids or abets another in committing a
crime, in addition to being criminally responsible for the
crime that is committed, is also criminally responsible for
any acts or other crimes that were committed as a natural
1 In a supplemental pro se brief, petitioner raises additional assignments of
error pertaining to the disposition of some other claims. We reject those contentions
without further discussion.
Cite as 284 Or App 176 (2017) 179
and probable consequence of the planning, preparation, or
commission of the intended crime.”2
Immediately before the court so charged the jury, the prosecutor,
anticipating that instruction, had highlighted the
“natural and probable consequences” concept in closing
argument. The jury found petitioner guilty on all counts,
and the court entered consequent judgments with sentences
imposing 400 months’ total incarceration.
After unsuccessfully appealing his convictions,
petitioner timely initiated this action in January 2010.
Thereafter, in August 2011, the Supreme Court issued its
opinion in Lopez-Minjarez, and petitioner subsequently
filed his operative first amended petition for post-conviction
relief. That petition included nine claims of inadequate representation
by criminal trial counsel, including petitioner’s
fourth claim, which was based on his defense attorney’s
failure to object to the giving of the “natural and probable
consequences” instruction.3 With the first amended petition,
petitioner submitted various “exhibits,” including two pages
from the trial transcript pertaining to the fourth claim. The
first of those pages set out a portion of the state’s closing
arguments in which (as described above) the prosecutor
referred to the content of the “natural and probable consequences”
instruction and told the jury that that instruction
was “most important” with respect to its consideration of
the charges based on conduct against C. The second transcript
page showed that the court had, in fact, given that
instruction.
Defendant filed a motion for summary judgment
against all nine claims alleged in the first amended petition.
With reference to the fourth claim, defendant’s summary
judgment motion asserted:
2 In the current compilation of the Uniform Criminal Jury Instructions, that
instruction is listed as “withdrawn” as an “incorrect statement of the law” in the
light of Lopez-Minjarez. See UCrJI 1053.
3 The first amended petition did not allege that the relief sought pursuant to
the fourth claim related only to certain counts/convictions; nor did petitioner, in
opposing the motion for summary judgment, so limit that claim. However, in his
appellate brief, petitioner states, “In this appeal, petitioner is not contesting his
convictions for counts 4 and 5.” Consequently, for purposes of our analysis and
disposition, the fourth claim is so circumscribed.
180 Lizarraga-Regalado v. Premo
“Petitioner was tried in 2004. The Supreme Court’s decision
in [Lopez-Minjarez] was not published until about
seven years after petitioner’s trial. Petitioner has not provided
any evidence to support a conclusion that all reasonable
trial attorneys, in 2004, were objecting to the ‘natural
and probable consequences’ portion of the aider and abettor
uniform instruction.”
(Emphasis added.)4 Thus, defendant’s summary judgment
motion related solely to the reasonableness of criminal trial
counsel’s conduct. The summary judgment motion did not
assert, alternatively, that there were no genuine issues of
material fact as to whether petitioner had been prejudiced
by counsel’s failure to object to the “natural and probable
consequences” instruction.
Petitioner filed a response, including a declaration
in which he averred, inter alia, that criminal trial counsel
had, in fact, failed to object to the “natural and probable consequences”
instruction. With respect to the fourth claim, the
response remonstrated that “[t]he issue is not whether trial
counsel should have anticipated [Lopez-Minjarez]”—but
rather, whether, in “a complicated case such as Petitioner’s”
and given the state of the law at the time of trial, including
State v. Anlauf, 164 Or App 672, 995 P2d 547 (2000), on
which defense counsel in Lopez-Minjarez had relied, criminal
trial counsel “should have at least preserved the argument
for appellate review.”5
4 Defendant concurrently asserted that the first amended petition, including
the fourth claim, did not comply with the “attachment” requirement of ORS
138.580, which provides that “affidavits, records or other documentary evidence
supporting the allegations of the petition shall be attached to the petition.”
As described below, the post-conviction court’s disposition with respect to
the fourth claim was based on its conclusion that “[t]his claim presents no genuine
issues of material fact”—that is, the generic standard for granting summary
judgment—and not on any purported noncompliance with ORS 138.580. The parties’
briefing on appeal, which include no arguments pertaining to ORS 138.580,
comports with that understanding.
5 In Anlauf, we addressed, and reversed, the denial of a motion for judgment
of acquittal on a charge of unlawful use of a weapon, where the state’s theory of
accomplice liability was predicated on the “natural and probable consequences”
concept. 164 Or App at 678-79. In so holding, although we had no occasion to
“decide the viability of the ‘natural and probable consequences’ instruction,”
Walraven, 277 Or App at 280 (emphasis in original), we
“characterized the case law as not supporting liability for the natural and
probable consequences of separate acts committed by accomplices and also
noted that any such theory was based on principles of accomplice liability
Cite as 284 Or App 176 (2017) 181
Defendant countered with a reply memorandum
in which he reiterated, verbatim, his contention that “petitioner
has not provided any evidence to support a conclusion
that all reasonable trial attorneys, in 2004, were objecting
to the ‘natural and probable consequences’ portion of the
aider and abettor uniform instruction.” In addition, defendant
asserted for the first time that, given the evidence
at trial and the manner in which the case had been tried,
“there is no reason to think that the jury * * * relied on the
‘natural and probable consequences’ instruction to find petitioner
guilty on counts [one] and two” of the indictment,
relating to conduct against C. As factual support for that
newly advanced “lack of prejudice” contention, defendant
submitted, for the first time on reply, extensive additional
excerpts of the trial transcript.
The post-conviction court allowed defendant’s
motion in part, granting summary judgment against five of
petitioner’s nine claims—including the fourth claim—and
denying the motion as to the others. With respect to the
fourth claim, the court concluded:
“This claim presents no genuine issues of material fact.
Clearly, trial counsel did not object to the Uniform Jury
Instruction, but Petitioner fails to present any evidence that
[failure to raise such an objection] was unreasonable based
on the case law existing in 2004. Additionally, Petitioner
fails to show how he was prejudiced by trial counsel not
objecting to the instruction.”
Thus, the court granted summary judgment against the
fourth claim on alternative grounds, concluding that petitioner
had failed to demonstrate material factual issues
with respect to each of the elements of post-conviction relief,
viz., deficient performance by counsel and consequent prejudice.
Following a trial on the remaining claims, the postconviction
court rejected those claims as well, and petitioner
appeals from the ensuing judgment.
Our review of the allowance of summary judgment
against petitioner’s fourth claim implicates both the
that predated the adoption of the Criminal Code of 1971 and specifically,
ORS 161.155.”
Id. (quoting Wade v. Brockamp, 268 Or App 373, 384, 342 P3d 142 (2015)).
182 Lizarraga-Regalado v. Premo
substantive standards governing post-conviction relief and
the procedural requisites and constraints of summary judgment.
Very recently in Garner v. Premo, 283 Or App 494,
___ P3d ___ (2017), we summarized the “settled legal principles”
pertaining to post-conviction relief claims based on
purported deficient representation, including, specifically,
failure to raise a legal challenge:
“A post-conviction petitioner who claims a deprivation of
rights under Article I, section 11, of the Oregon Constitution
must prove ‘(1) that his lawyer failed to exercise reasonable
professional skill and judgment, and (2) that petitioner
suffered prejudice as a result.’ Everett [v. Premo, 279 Or
App 470, 478, 380 P3d 1099 (2016)]. A court considering
whether a petitioner has met that burden must evaluate
the adequacy of the lawyer’s representation ‘from the lawyer’s
perspective at the time, without the distorting effects
of hindsight.’ Lichau v. Baldwin, 333 Or 350, 360, 39 P3d
851 (2002). A lawyer has performed inadequately, for purposes
of the constitutional analysis, only if the lawyer’s
decisions ‘reflect an absence or suspension of professional
skill and judgment.’ Gorham v. Thompson, 332 Or 560, 567,
34 P3d 161 (2001).
“* * * * *
“The mere fact that an attorney could have raised an
argument does not establish that the attorney is inadequate
for having failed to raise it; nor can the petitioner
prevail simply by establishing that there was no evident
downside to the attorney making such an argument. Green
[v. Franke, 357 Or 301, 314, 350 P3d 188 (2015)]. Rather,
the pertinent question remains whether the lawyer’s failure
to make the argument ‘constituted inadequate assistance,
especially when viewed in light of the strategy that
the petitioner’s counsel did pursue.’ Id.”
283 Or App at 501-02.6
In post-conviction proceedings, as generally, a
movant defendant is entitled to summary judgment against
a claim
6 Because we ultimately conclude that petitioner’s criminal trial counsel was
inadequate under Article I, section 11, we frame our analysis without reference
to petitioner’s alternative contention under the Sixth Amendment. See Montez v.
Czerniak, 355 Or 1, 7 n 3, 322 P3d 487, adh’d to as modified on recons, 355 Or 598,
330 P3d 595 (2014).
Cite as 284 Or App 176 (2017) 183
“if the pleadings, depositions, affidavits, declarations and
admissions on file show that there is no genuine issue as to
any material fact and that the moving party is entitled to
prevail as a matter of law. No genuine issue as to a material
fact exists if, based upon the record before the court
viewed in a manner most favorable to the adverse party,
no objectively reasonable juror could return a verdict for
the adverse party on the matter that is the subject of the
motion for summary judgment. The adverse party has the
burden of producing evidence on any issue raised in the
motion as to which the adverse party would have the burden
of persuasion at trial.”
ORCP 47 C.
Here, as noted, the post-conviction court granted
summary judgment against the fourth claim on two alternative
bases, either of which, if sustained, would compel
affirmance. Accordingly, we address each in turn.
The post-conviction court first concluded that defendant
was entitled to summary judgment because, although
petitioner’s criminal trial counsel did not object to the “natural
and probable consequences” instruction, petitioner had
“fail[ed] to present any evidence” that the failure to raise
such an exception was “unreasonable based on the case law
existing in 2004.” Implicit in that conclusion is the court’s
acceptance of defendant’s premise, asserted in the motion for
summary judgment and reiterated in defendant’s reply, that
it was incumbent on petitioner to have proffered evidence
“to support a conclusion that all reasonable trial attorneys,
in 2004, were objecting to the ‘natural and probable consequences’
” instruction.
The post-conviction court erred in that regard. We
and the Supreme Court have consistently held, in generally
analogous circumstances, that the determination of whether
criminal defense counsel’s failure to raise a legal challenge
breached the standard of “reasonable professional skill and
judgment” depends on “an examination of the state of the
law at the relevant times,” Krieg v. Belleque, 221 Or App
36, 40, 188 P3d 413, rev den, 345 Or 317 (2008), and the
potential risks and benefits of raising such a challenge. See,
e.g., Garner, 283 Or App at 505; Krieg, 221 Or App at 40. See
184 Lizarraga-Regalado v. Premo
generally Burdge v. Palmateer, 338 Or 490, 497-500, 112 P3d
320 (2005). Here, petitioner proffered evidence pertaining
to those considerations that, at least, precluded summary
judgment for defendant on the issue of whether criminal
trial counsel’s conduct breached the requisite standard of
care.
In two recent decisions, issued after the postconviction
court entered judgment here, we have concluded
that defense counsels’ failure to except to the accomplice
liability “natural and probable consequences” instruction
in trials that (as here) occurred after we issued Anlauf in
2000 and before the Supreme Court issued Lopez-Minjarez
in 2011 constituted a failure to exercise reasonable professional
skill and judgment. See Walraven, 277 Or App 264;
Wade v. Brockamp, 268 Or App 373, 342 P3d 142 (2015).7
Walraven, which substantially incorporated, but
refined and amplified, Wade’s reasoning is especially instructive.
There, the petitioner had been charged with multiple
counts of aggravated murder, as well as one count each of
felony murder and intentional murder, all arising from an
armed robbery and subsequent fatal shooting committed
with his older brother. 277 Or App at 266-67. During the
criminal trial—which occurred in July 2000, six months
after Anlauf issued—the state presented evidence that
either the petitioner had personally committed the murder
or, even if he had not himself killed the victim (i.e., his
brother had), he had at least participated with his brother
in the armed robbery of the victim, which had immediately
7 Conversely, in Hale v. Belleque, 255 Or App 653, 686, 298 P3d 596, adh’d
to on recons, 258 Or App 587, 312 P3d 533, rev den, 354 Or 597 (2013), and Eklof
v. Steward, 273 Or App 789, 792-93, 359 P3d 570 (2015), rev’d in part on other
grounds, 360 Or 717, 385 P3d 1074 (2016), we held that where the petitioners’
criminal trials antedated Anlauf, there was no such failure. In Eklof, we highlighted
that temporal distinction:
“[In Wade, we] distinguished that case from Hale because the underlying
criminal trial in Hale was decided before State v. Anlauf , where we signaled
that the uniform jury instruction misstated the law. Unlike Wade and
like Hale, petitioner’s criminal trial occurred before Anlauf and, thus, petitioner’s
counsel was not alerted to the fact that the instruction was legally
flawed.”
Id. at 792 n 2 (citations omitted); see also Eklof, 360 Or at 719 n 2 (rejecting without
discussion the petitioner’s challenge to the granting of summary judgment
against claim based on counsel’s failure to object to “natural and probable consequences”
instruction).
Cite as 284 Or App 176 (2017) 185
preceded the killing. Id. at 268-69. Given that evidence,
the state proceeded, in part, on a theory of accomplice liability
by which the jury could find the petitioner guilty of
aggravated murder and intentional murder “without finding
that he intended to kill or help kill the victim, so long
as it found that [he] was involved in the armed robbery.”
Id. at 269. Accordingly, the state requested, and the court—
without exception from the petitioner’s defense counsel—
gave a “natural and probable consequences” instruction
(which was identical to that given in the present petitioner’s
criminal trial four years later). Id. at 273.
The jury found the petitioner guilty of aggravated
murder, as well as felony murder and intentional murder, and
the petitioner ultimately sought post-conviction relief, alleging
that criminal trial counsel had been deficient in myriad
respects, including in failing to object to the “natural and
probable consequences” instruction. Id. at 266. Following a
trial, the post-conviction court rejected all claims, including
that pertaining to the “natural and probable consequences”
instruction. Id. at 275. In so holding, the court found persuasive
an explanation advanced by criminal defense counsel
that, given the law existing at the time of the criminal
trial, he “had no reason to believe that an objection to the
jury instruction would have been successful.” Id. at 274. The
post-conviction court further determined that the petitioner
had failed to demonstrate that he had been actionably prejudiced
by criminal defense counsel’s inaction in that regard.
Id. at 275.
We reversed in part the post-conviction court’s disposition
of the claim based on the failure to object to the “natural
and probable consequences” instruction. Specifically,
we concluded that (1) counsel’s inaction constituted a failure
to exercise reasonable professional skill and judgment,
id. at 279-85; and (2) while the petitioner had been consequently
prejudiced with respect to the jury’s consideration of
the aggravated murder and intentional murder charges, he
had not been so prejudiced with respect to the felony murder
charge. Id. at 285-87.8
8 We also affirmed, without further discussion, the post-conviction court’s
rejection of the petitioner’s other claims.
186 Lizarraga-Regalado v. Premo
Our conclusion regarding the breach of requisite
care in representation derived from the conjunction of
three premises. First, the exercise of reasonable professional
skill and judgment requires criminal defense counsel
to research and analyze “ ‘the law to the extent appropriate
to the nature and complexity of the case.’ ” Id. at 283
(quoting Krummacher v. Gierloff, 290 Or 867, 875, 627 P2d
458 (1981)). Second, given the “nature and complexity of
the case” in Walraven—including the prosecution’s partial
reliance on an accomplice liability theory that purported to
“reliev[e] the jury of the requirement to find an element”
(viz., intent) of felony charges—it was incumbent on counsel
to investigate whether, or to what extent, the “natural
and probable consequences” instruction on which the state’s
theory depended comported with the existing law of accomplice
liability. Id. at 283-84. Finally, reasonable investigation
“would have led to the discovery of Anlauf.” Id. at 284.
That “discovery” would, in turn, have caused any reasonable
defense counsel to object to the instruction:
“Although Anlauf did not explicitly render the instruction
obsolete (an issue we were not called upon to decide),
we did establish that the erroneous accomplice liability
theory—that a defendant who participates in one crime is
necessarily responsible as an accomplice for other crimes
that were the natural and probable consequences of the
intended predicate crime—was not supported by statutes
or case law.”
Id. (emphasis in original); see also id. at 282 (summarizing
ratio decidendi in Wade: “Trial counsel’s failure was not a
failure to ‘anticipate’ reversal in the law of accomplice liability,
as argued by the defendant, but rather a failure to
compare the instruction to the law of accomplice liability,
which would have led counsel to Anlauf.”).
In so holding in Walraven, we rejected the defendant’s
efforts to distinguish Wade either on temporal
grounds (viz., that while six years had elapsed between
Anlauf and Wade’s criminal trial, the interval between
Anlauf and Walraven’s criminal trial was only six months)
and on differences in the evidence offered in the respective
post-conviction proceedings, including affidavits by counsel
Cite as 284 Or App 176 (2017) 187
pertaining to discussions within the criminal defense bar
and local practice norms. Id. at 282-84. While acknowledging
the defendant’s proposition that, because of the much
shorter interval in Walraven, “the broader criminal defense
bar had not yet had time to absorb the impact of Anlauf
on the viability of the instruction,” we concluded that that
circumstance did not excuse trial counsel’s failure because
“nothing prevented counsel from discovering the decision in
preparing for a trial heavily dependent on a theory of accomplice
liability.” Id. at 284. We further concluded that, given
the controlling legal principles, evidence (of the sort submitted
in Wade, but not in Walraven) that before the criminal
trial, the criminal defense bar had engaged in listserve discussions
of “Anlauf and the instruction” was “not essential”
to the conclusion that failure to object to the “natural and
probable consequences” instruction was unreasonable. Id.
We return to this case. In opposing summary judgment,
petitioner proffered evidence that, when viewed most
favorably to his claim, would establish that (1) his criminal
trial occurred after Anlauf issued; (2) he was charged
with felonies, which, allegedly, he committed jointly with
codefendants; (3) one of the state’s theories of liability, with
respect to one or more of the charged felonies, was that
petitioner was liable as an accomplice because of the “natural
and probable consequences” of other crimes in which
he had participated jointly; (4) the criminal trial court gave
the uniform accomplice liability “natural and probable consequences”
instruction; (5) petitioner’s defense counsel did
not object to that instruction; and (6) the jury found defendant
guilty of all charges. Those facts alone, without any
additional evidence, constituted a prima facie showing that,
by failing to object to the instruction, petitioner’s criminal
defense counsel breached the standard of reasonable professional
skill and judgment. See Walraven, 277 Or App at 284;
Wade, 268 Or App at 386-88.
As noted, the premise of the post-conviction court’s
conclusion to the contrary was that petitioner had “fail[ed]
to present any evidence” that the failure to raise such an
objection “was unreasonable based on the case law existing
in 2004.” With respect—and with full appreciation that the
court’s ruling antedated Wade and Walraven—we disagree.
188 Lizarraga-Regalado v. Premo
As described immediately above, petitioner did present
such evidence—evidence that was, and is, legally sufficient
to support the requisite determination as to the alleged
“unreasonableness” of counsel’s performance. Moreover, to
the extent the post-conviction court assumed (as defendant
repeatedly argued) that, to defeat summary judgment, petitioner
was obligated to submit evidence of discussions or
practice among other criminal defense attorneys circa 2004,
that was incorrect. Rather, given the post-Anlauf timing of
petitioner’s criminal trial, the nature of the charges against
him, and the prosecution’s reliance on a theory of accomplice
liability predicated on the “natural and probable consequences”
instruction, additional evidence of that sort was
“not essential” to establish a failure of reasonable professional
skill and judgment. Walraven, 277 Or App at 284.
In sum, the post-conviction court erred in granting
summary judgment on the first alternative ground.
Nor can the post-conviction court’s disposition be
affirmed in its entirety on its alternative rationale that petitioner
had “fail[ed] to show how he was prejudiced by trial
counsel not objecting to the instruction.” As noted, that matter
was raised for the first time in defendant’s reply memorandum,
supplemented by additional excerpts from the
criminal trial transcript.9 Upon review of the summary judgment
record, including the portion of the prosecutor’s closing
argument that petitioner proffered, we conclude that when
“viewed in a manner most favorable” to petitioner, ORCP 47 C,
the record discloses genuine issues of material fact as to
whether petitioner was prejudiced with respect to either or
both Counts 1 and 2 of the indictment (pertaining to conduct
against C), but not as to Count 3 (pertaining to conduct
against D), by criminal trial counsel’s failure to object to the
“natural and probable consequences” instruction.
9 On appeal, petitioner does not contend that the post-conviction court’s
consideration of lack of prejudice as an alternative basis for summary judgment
was procedurally improper in this posture. But see Two Two v. Fujitec America,
Inc., 355 Or 319, 324-26, 325 P3d 707 (2014) (party opposing summary judgment
bears burden of producing evidence demonstrating existence of genuine issue of
material fact only with respect to issues raised in motion for summary judgment,
and not with respect to issues first raised in a movant’s reply memorandum). See
generally Eklof, 360 Or at 730, 736.
Cite as 284 Or App 176 (2017) 189

Outcome: The post-conviction court erred in granting summary
judgment against petitioner’s fourth claim in its entirety.
Judgment on petitioner’s fourth claim reversed and
remanded; otherwise affirmed.

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